People v. Lindsey

2020 IL 124289

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 124289)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
JONATHAN LINDSEY, Appellee.

Opinion filed April 16, 2020.

JUSTICE THEIS delivered the judgment of the court, with opinion.

Justices Kilbride, Garman, and Karmeier concurred in the judgment and
opinion.

Chief Justice Anne M. Burke dissented, with opinion, joined by Justice Neville.

Justice Michael J. Burke took no part in the decision.

OPINION

¶1 The central issue in this case is whether a warrantless dog sniff outside the door
of the motel room where defendant Jonathan Lindsey was staying violated the
 fourth amendment. The Rock Island County circuit court decided that it did not and
denied the defendant’s motion to suppress evidence. The defendant was convicted
of unlawful possession with intent to deliver a controlled substance within 1000
feet of a school (see 720 ILCS 570/407(b)(1) (West 2014)) and sentenced to seven
years’ imprisonment. The appellate court reversed and remanded, holding that the
trial court should have granted the defendant’s suppression motion. 2018 IL App
(3d) 150877. For the reasons that follow, we reverse the judgment of the appellate
court and affirm the judgment of the trial court.

¶2 BACKGROUND

¶3 Rock Island police officer Timothy Muehler received information from a
confidential informant that the defendant was selling narcotics from a room at a
local motel. A background check revealed that the defendant had an extensive
criminal record, including two 2012 arrests for the manufacture and delivery of
controlled substances. Another officer then contacted the defendant. The defendant
stated that he had narcotics for sale and agreed to meet the officer. At the meeting,
the officer and the defendant discussed drugs, but no deal occurred.

¶4 On April 27, 2014, Officer Muehler surveilled the motel and observed the
defendant drive away from the parking lot. Muehler knew that the defendant had a
suspended driver’s license, so he followed the defendant’s vehicle and called
dispatch for help. Officer Jacob Waddle eventually stopped the defendant. He was
arrested for driving with a suspended license (see 625 ILCS 5/6-303 (West 2014))
and transported to the Rock Island Police Department, where he signed a waiver of
rights form. According to Officer Muehler, the defendant stated that he was staying
in Room 129 at the motel. Another officer went there and spoke to the motel’s staff,
who advised that the defendant was staying in Room 130. Deputy Jason Pena of
the Rock Island County Sheriff’s Department and his K-9 partner Rio then went to
the motel. Rio conducted a “free air sniff” outside Room 130 and alerted to the odor
of narcotics. Officer Muehler submitted an affidavit outlining the investigation to a
trial judge, who issued a search warrant. Inside the room, police found 4.7 grams
of heroin in a dresser drawer, along with related items—a digital scale, scissors,
corner-cut plastic bags, and sandwich-sized plastic bags. The defendant later

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 admitted that the heroin was his, and he was charged with unlawful possession with
intent to deliver a controlled substance within 1000 feet of a school.

¶5 The defendant filed a motion to suppress evidence, arguing that the dog sniff
violated the fourth amendment. The trial court held a hearing on the motion. The
State called Sergeant Shawn Slavish of the Rock Island Police Department as its
first witness. Sergeant Slavish testified that he participated in the investigation and
learned the defendant was staying in Room 130 of the American Motor Inn.
According to Slavish, the motel “is shaped in a U or a horseshoe shape with another
building that sits at the entrance forming kind of a block there.” The door to Room
130 is “set back in a little alcove[,] and as you stepped into the alcove to the right
was Room 130.” Slavish added that the alcove itself had a door, but the area was
“open to the public, the door was propped open” on April 27.

¶6 Deputy Pena also testified the area was open to the public that day. There were
no locked doors that prevented access to the door of Room 130. On the day of the
dog sniff, Pena directed Rio to perform a free air sniff along the side of the motel.
Once Rio reached “the general area” outside Room 130, he changed his behavior,
sitting and lying down, which signaled an alert to the odor of narcotics. On cross-
examination by defense counsel, Deputy Pena clarified that Rio “was
approximately at the door handle and the door seam” and “within inches of the
door” when he alerted. The State presented no further evidence.

¶7 The defendant called a single witness, Kylinn Ellis. Ellis testified that she was
the mother of the defendant’s son. On April 27, she “came down to see him” after
work. At some point that afternoon, the defendant was driving Ellis’s car with her
in the passenger seat, when he was stopped by police and arrested. The car was
impounded, and she walked back to the motel. As she approached the defendant’s
room, she noticed that “the curtains were moving, and you can like see somebody”
inside the room. On cross-examination by the State, Ellis clarified that she did not
see a person inside the room.

¶8 The trial court denied the defendant’s motion. The trial court relied upon United
States v. Roby, 122 F.3d 1120, 1125 (8th Cir. 1997), where a federal circuit court
of appeals held that a hotel guest may have had a reasonable expectation of privacy
in his room but not in the corridor outside, so a warrantless dog sniff in that corridor
did not violate the fourth amendment. The court concluded, “the motel room

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 corridor is a public place of accommodation, and, as such, [police] have the right
to walk that dog down there.” Following a stipulated bench trial, the defendant was
convicted and sentenced to seven years’ imprisonment and three years’ mandatory
supervised release. He appealed.

¶9 A divided appellate court panel reversed and remanded. 2018 IL App (3d)
150877. The appellate court majority rejected Roby and relied instead upon United
States v. Whitaker, 820 F.3d 849, 853-54 (7th Cir. 2016), where another federal
circuit court of appeals held that an apartment resident may have had a reasonable
expectation of privacy in the hallway outside his door, so a warrantless dog sniff in
that hallway violated the fourth amendment. 2018 IL App (3d) 150877, ¶¶ 23-24.
The majority explained that the defendant “had a justifiable expectation of privacy
because, until Pena focused the free air sniff on the motel door and seams to detect
the odor of drugs inside [his] motel room, the smell was undetectable outside of the
room.” Id. ¶ 24.

¶ 10 Having concluded that the warrantless dog sniff violated the fourth amendment,
the appellate court majority shifted its attention to the exclusionary rule. The
majority held that case law at the time was “quite sufficient to have apprised a
reasonably well-trained officer that the execution of the Pena dog sniff without a
warrant” was unconstitutional. Id. ¶ 36. The majority determined that the police
lacked an objectively reasonable good-faith belief that their conduct was lawful, so
the heroin ultimately recovered inside the defendant’s room should have been
suppressed. Id. ¶ 37. 1

¶ 11 Justice Schmidt dissented. He observed that, while some courts have
determined that dog sniffs of house and apartment doors constitute fourth
amendment searches, those cases have not been extended to hotel room doors
“because a hotel tenant possesses a reduced expectation of privacy.” Id. ¶ 51
(Schmidt, J., concurring in part and dissenting in part) (citing, inter alia, Roby, 122
F.3d 1120). He added, “Even assuming that the majority correctly determined that

1
The appellate court majority also vacated the drug assessment and street value fines and the
DNA analysis fee levied against the defendant. 2018 IL App (3d) 150877, ¶¶ 41, 45. Those fines
and fees are not at issue in this appeal.

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 the dog sniff in this case violated the fourth amendment (it did not), the good faith
exception to the exclusionary rule applies.” Id. ¶ 50.

¶ 12 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. July 1, 2018).

¶ 13 ANALYSIS

¶ 14 Here, we must determine whether the appellate court erred in reversing the trial
court’s denial of the defendant’s motion to suppress evidence. In reviewing a ruling
on a suppression motion, we apply the familiar two-part standard of review
announced by the United States Supreme Court in Ornelas v. United States, 517
U.S. 690, 699 (1996). See People v. Luedemann, 222 Ill. 2d 530, 542-43 (2006).
Under that standard, we give deference to the factual findings of the trial court, and
we will reject those findings only if they are against the manifest weight of the
evidence. Id. We remain free, however, to decide the legal effect of those facts, and
we review de novo the trial court’s ultimate ruling on the motion. Id.

¶ 15 The fourth amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const., amend. IV.

The Illinois Constitution of 1970 provides:

“The people shall have the right to be secure in their persons, houses, papers
and other possessions against unreasonable searches, seizures, invasions of
privacy or interceptions of communications by eavesdropping devices or other
means. No warrant shall issue without probable cause, supported by affidavit
particularly describing the place to be searched and the persons or things to be
seized.” Ill. Const. 1970, art. I, § 6.

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 This court has long held that the search and seizure clause of our state constitution
stands in “limited lockstep” with its federal counterpart. People v. LeFlore, 2015
IL 116799, ¶ 16.

¶ 16 Those guarantees offer protection to people, not places (People v. Smith, 152
Ill. 2d 229, 244 (1992) (citing Katz v. United States, 389 U.S. 347, 351 (1967)), but
the extent to which they protect people depends upon where the people are
(Minnesota v. Carter, 525 U.S. 83, 88 (1998)). Our analysis begins and ends,
therefore, with the question of whether the defendant has established a legitimate
expectation of privacy in the place searched. People v. Johnson, 237 Ill. 2d 81, 90
(2010). In doing so, the defendant must point to a source outside the constitution—
namely, formal property interests or informal privacy interests. United States v.
Jones, 565 U.S. 400, 408 (2012); Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978)
(“Legitimation of expectations of privacy by law must have a source outside of the
Fourth Amendment, either by reference to concepts of real or personal property law
or to understandings that are recognized and permitted by society.”).

¶ 17 Those two types of sources roughly correspond to two complementary and
overlapping tracks of fourth amendment jurisprudence: a property-based approach,
exemplified by the United States Supreme Court’s opinion in Florida v. Jardines,
569 U.S. 1 (2013), and a privacy-based approach, exemplified by Justice Kagan’s
concurrence in that case and Justice Harlan’s concurrence in Katz. The government
violates the fourth amendment either by a warrantless intrusion onto a person’s
property (see id. at 5) or by a warrantless infringement of a person’s societally
recognized privacy (see id. at 12 (Kagan, J., concurring, joined by Ginsburg and
Sotomayor, JJ.) (citing Katz, 389 U.S. at 360 (Harlan, J., concurring))). As the
Supreme Court has explained, property rights are the baseline to which Katz adds.
Id. at 5 (majority opinion).

¶ 18 The parties focus almost solely on the privacy-based approach and only touch
upon the property-based approach in the interest of “completeness.” According to
the State, the defendant “properly disclaimed” in the appellate court any argument
that the unwarranted dog sniff violated the fourth amendment under Jardines. The
defendant concedes that “property rights are not the sole measure of Fourth
Amendment protections,” so a property-based approach is “not necessary” to
resolve this case. We disagree. If, as the State contends, the warrantless dog sniff

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 here did not violate the fourth amendment under the privacy-based approach, we
still must determine whether it violated the fourth amendment under the property-
based approach. Thus, we will address both approaches in turn.

¶ 19 Property-Based Approach

¶ 20 The property-based approach to the fourth amendment exclusively provided its
protections for much of our history. Id.; see Jones, 565 U.S. at 405 (“The text of
the Fourth Amendment reflects its close connection to property ***.”). When the
government obtains information by physically intruding on persons, houses, papers,
or effects without a warrant, an unconstitutional search occurs. Jardines, 569 U.S.
at 5 (citing Jones, 565 U.S. at 406 n.3).

¶ 21 In Jardines, the police received an unverified tip that the defendant was growing
marijuana inside his home. A month later, a joint surveillance team of federal drug
enforcement agents and local police officers descended on the house. After
watching the house for 15 minutes, two officers and a drug-detection dog entered
the defendant’s yard and approached his porch. The dog sniffed the base of the
defendant’s front door and alerted to the odor of narcotics. One of the officers
obtained a warrant and subsequently found marijuana plants inside the house. The
defendant was charged with drug trafficking. Before trial, he filed a motion to
suppress, arguing that the dog sniff was an unreasonable search. The trial court
agreed, but the appellate court did not. The state supreme court affirmed the trial
court’s decision, and the State sought review from the United States Supreme
Court.

¶ 22 The Court emphasized that “the home is first among equals” for fourth
amendment purposes. Id. at 6. The amendment’s core protection encompasses a
person’s right to escape inside the home and thereby to avoid unwanted government
intrusion. Id. (citing Silverman v. United States, 365 U.S. 505, 511 (1961)). That
right “would be of little practical value if the State’s agents could stand in a home’s
porch or side garden and trawl for evidence with impunity.” Id. Thus, the area
immediately surrounding and associated with the home—the so-called curtilage—
remains constitutionally indistinct from it. Id. The Court described the front porch
as “the classic exemplar” of the curtilage. Id. at 7. Because the officers had no

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 permission to plant themselves there in order to “engage in canine forensic
investigation” (id. at 9), the dog sniff was indeed a search (id. at 11-12).

¶ 23 This court dissected Jardines in People v. Burns, 2016 IL 118973. In Burns, the
Urbana Police Department received an anonymous tip that the defendant was
selling marijuana. Id. ¶ 4. A detective conducted a background check of the
defendant and learned that she had two prior arrests for marijuana possession. Id.
¶ 5. Several weeks later, the detective went to the defendant’s apartment building
to confirm her address. Id. ¶ 6. She lived in an apartment on the third floor of a
multiunit building. The building had two locked entrances, so its common areas
were not publicly accessible. Id. ¶ 3. The detective knocked on one entrance door,
and another tenant admitted him into the building. Id. ¶ 6. Eventually, the detective
was replaced by another police officer, who admitted a third officer and a drug-
detection dog into the building. That officer and the dog went to the third floor. The
defendant’s apartment was located across a small landing from another apartment,
and the dog alerted to the odor of narcotics outside her door. Id. ¶ 7. The detective
then secured a warrant and found marijuana inside the apartment. Id. ¶¶ 8-9. She
was charged with unlawful possession of cannabis with intent to deliver. The
defendant filed a motion to suppress evidence, arguing that the dog sniff violated
the fourth amendment under Jardines. The trial court granted that motion, and the
State appealed. Id. ¶ 10. The appellate court affirmed the trial court’s decision,
holding that the warrantless dog sniff was unconstitutional, so the marijuana
subsequently found in the defendant’s apartment must be suppressed. Id. ¶ 13. The
State appealed again.

¶ 24 This court affirmed the lower courts’ decisions. Id. ¶ 81. We reviewed Jardines
in great detail (id. ¶¶ 20-30), then considered, and summarily rejected, each of the
State’s arguments. First, the court disagreed with the State that the landing in front
of the defendant’s apartment did not qualify as curtilage under Jardines because
the entrances were locked when the police attempted to enter the building and were
“clearly not open to the general public.” Id. ¶ 33. Second, the court disagreed with
the State that the landing did not qualify as curtilage under the four-part test of
United States v. Dunn, 480 U.S. 294, 301 (1987). Burns, 2016 IL 118973, ¶ 34. The
court observed that the landing was in close proximity to the apartment; the landing
and the apartment were both inside the building, whose entrances were locked; the
landing was used only by the defendant and her nearest neighbor; and the landing

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 could not be seen by people outside. Id. ¶¶ 35, 37. Third, the court disagreed with
the State that the boundaries of the landing were not easily determined: “The
boundary to the landing of defendant’s apartment is easily understood as curtilage”
because it is “a clearly marked area within a locked building with limited use and
restricted access.” Id. ¶ 39. Fourth, the court disagreed with the State that the
landing was not intimately associated with home activities, dismissing the State’s
final argument as a mere rehash of its unavailing Dunn-factors argument. Id. ¶ 40.

¶ 25 The court again highlighted the fact that the entrances to the defendant’s
apartment building were locked when the police attempted to enter, knowing that
the building was not publicly accessible. Id. ¶ 41. We noted, however, that “this
case is distinguishable from situations that involve police conduct in common areas
readily accessible to the public.” Id. Under Jardines, “when police entered
defendant’s locked apartment building at 3:20 a.m. with a drug-detection dog, their
investigation took place in a constitutionally protected area.” Id. ¶ 44. Because the
police did not have a warrant to conduct that search, it violated the fourth
amendment. Id.

¶ 26 More recently, this court stated that the distinction between locked and
unlocked buildings emphasized in Burns “does not create a difference.” People v.
Bonilla, 2018 IL 122484, ¶ 25. The court held that a common area hallway of an
apartment in an unlocked building is curtilage. Id. Consequently, a warrantless dog
sniff at the defendant’s apartment door in such a hallway violated the fourth
amendment. Id. ¶ 32.

¶ 27 Burns and Bonilla are simple and straightforward applications of Jardines. In
all three cases, the dog sniffs occurred outside the doors of the defendants’ homes.
As Jardines makes abundantly clear through repetition of the term, “home” is the
crux of the curtilage determination. If there is no home, there can be no
“constitutionally protected extension” of it. Jardines, 569 U.S. at 8. As the
defendant acknowledges, there are certain dwellings “where a traditional curtilage
concept and analysis do not apparently or readily apply.” We agree. The concept of
curtilage may be incongruent with respect to a place of temporary lodging because

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 the area around that place is not physically and psychologically linked to it (id. at
7) and does not belong to the person staying there (id. at 5-6). 2

¶ 28 The record in this case does not show that Room 130 was the defendant’s home.
According to Officer Muehler’s affidavit in support of a search warrant, a
confidential informant warned that the defendant was “selling narcotics from the
American Motor Inn.” Muehler did not specify the date of the tip. The defendant
stated that he was “staying” at the motel, and the motel’s staff stated that he was
“currently registered to room 130.” Sergeant Slavish and Ellis both confirmed in
their suppression hearing testimony that the defendant was “staying” at the motel,
but neither revealed the length of his stay. If the defendant was only a guest at the
motel for a day or a few days, it would be difficult to say that the room was his
home and, consequently, difficult to say that the alcove was its curtilage. The
defendant, who bore the burden of proof at the suppression hearing (see People v.
Brooks, 2017 IL 121413, ¶ 22), offered no evidence in this regard. That alone is
enough to decide the curtilage question against him and reject any property-based
fourth amendment claim.

¶ 29 Even if we assume that the defendant’s motel room was his home, the alcove
outside it was not curtilage under Dunn. Although the Supreme Court in Jardines
did not cite Dunn or mention its four-factor test for determining whether the area
searched is within the curtilage of a home, that test remains instructive. Burns, 2016
IL 118973, ¶ 87 (Garman, C.J., specially concurring). In Dunn, 480 U.S. at 301, the
Court stated:

“[C]urtilage questions should be resolved with particular reference to four
factors: the proximity of the area claimed to be curtilage to the home, whether
the area is included within an enclosure surrounding the home, the nature of the
uses to which the area is put, and the steps taken by the resident to protect the
area from observation by people passing by. [Citations.] We do not suggest that
combining these factors produces a finely tuned formula that, when
mechanically applied, yields a ‘correct’ answer to all extent-of-curtilage

2
We do not imply, however, that a hotel or motel room may never be a home or that the area
outside such a room may never be within its curtilage. That is a case-by-case factual determination.
As the defendant aptly notes, “a person residing in a motel long-term could indeed have curtilage
depending on the facts of the case.”

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 questions. Rather, these factors are useful analytical tools only to the degree
that, in any given case, they bear upon the centrally relevant consideration—
whether the area in question is so intimately tied to the home itself that it should
be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”

See People v. Pitman, 211 Ill. 2d 502, 516 (2004) (“In determining whether a
particular area falls within a home’s curtilage, a court asks whether the area harbors
the intimate activities commonly associated with the sanctity of a person’s home
and the privacies of life.”). But see State v. Williams, 862 N.W.2d 831, 838 (N.D.
2015) (observing that the Dunn factors are “insufficient” to gauge whether a
condominium building hallway is curtilage).

¶ 30 Here, the alcove was in close proximity to Room 130 but also to Room 131.
The alcove was not within an enclosed area surrounding the room. It had a door,
which was closed in the pictures the defense counsel offered into evidence at the
suppression hearing but propped open when Deputy Pena and Rio arrived at the
motel. The alcove was not put to personal use by the defendant. He had no
ownership or possession of the alcove, only a license to use it. The alcove offered
a means of ingress and egress to the defendant and anyone visiting him, but also to
a guest staying in Room 131 and that person’s associates, as well as the motel’s
staff or service technicians charged with cleaning and maintaining both rooms.
Indeed, it was accessible to the public at any time. Further, the defendant took no
steps to shield it from observation by other motel guests or the public. Not only was
the door to the alcove open on April 27, but the defendant disclaimed any
connection to it when he misled police that he was staying in another room.

¶ 31 Under Dunn, the alcove was not within the curtilage of his motel room. See
United States v. Legall, 585 F. App’x 4, 5 (4th Cir. 2014) (per curiam) (applying
the Dunn factors and concluding “the common hallway of the hotel was not within
any curtilage of the hotel room”); State v. Foncette, 356 P.3d 328, 331 (Ariz. Ct.
App. 2015) (“Although in close proximity to a private area, the public access
hallway outside the door was not the type of area ‘to which the activity of home life
extends’ so as to qualify as curtilage of the hotel room.” (quoting Oliver v. United
States, 466 U.S. 170, 182 n.12 (1984))). Consequently, the warrantless dog sniff in
this case did not violate the fourth amendment under the property-based approach.
We must determine next whether it violated the fourth amendment under the

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 privacy-based approach. 3

¶ 32 Privacy-Based Approach

¶ 33 The privacy-based approach to the fourth amendment has its roots in Justice
Harlan’s short, but oft-referenced, concurrence in Katz, which “decoupled violation
of a person’s Fourth Amendment rights from trespassory violation of his property.”
Kyllo v. United States, 533 U.S. 27, 32 (2001). Justice Harlan summarized his
understanding of earlier cases: “[T]here is a twofold requirement, first that a person
have exhibited an actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as ‘reasonable.’ ” Katz, 389
U.S. at 361 (Harlan, J., concurring); see California v. Ciraolo, 476 U.S. 207, 211-
12 (1986) (stating that Katz posits a two-part inquiry into whether a person has
“manifested a subjective expectation of privacy” in the object of the challenged
search and whether that expectation is reasonable in light of “ ‘the personal and
societal values protected by the Fourth Amendment’ ” (quoting Oliver, 466 U.S. at
182-83)). When the government, even in the absence of a physical intrusion into a
constitutionally protected area, obtains information by invading a reasonable
expectation of privacy in persons, houses, papers, or effects without a warrant, an
unconstitutional search occurs. Kyllo, 533 U.S. at 33; Smith v. Maryland, 442 U.S.
735, 740 (1979).

¶ 34 In Jardines, Justice Kagan joined the Court’s opinion but took up the Katz
mantle in her concurrence, which Justices Ginsburg and Sotomayor joined. Justice
Kagan agreed with the Court that the police activity was a trespass on the
defendant’s property, but she asserted that it was also an invasion of his privacy.
Jardines, 569 U.S. at 13 (Kagan, J., concurring, joined by Ginsburg and Sotomayor,
JJ.). While the Court considered the case under “a property rubric,” Justice Kagan
“could just as happily have decided it” under a privacy one. Id. According to Justice
Kagan, “It is not surprising that in a case involving a search of a home, property

3
Neither Jardines nor Burns offers guidance on that question. In Jardines, 569 U.S. at 11, the
Court felt that it “need not decide whether the officers’ investigation of [the defendant’s] home
violated his expectation of privacy under Katz” because the property-based approach “keeps easy
cases easy.” And in Burns, 2016 IL 118973, ¶ 45, we observed that our “application of Jardines
makes it unnecessary to address the merits of whether use of the drug-detection dog violated
defendant’s reasonable expectation of privacy.”

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 concepts and privacy concepts should so align” because property law naturally
influences shared social understandings “of what places should be free from
governmental incursions.” Id. (citing Georgia v. Randolph, 547 U.S. 103, 111
(2006)). The defendant’s home was his property, as well as his most intimate and
familiar space, so a property analysis and a privacy analysis would run on similar
paths. Id. at 14.

¶ 35 Justice Kagan felt that the case could have been resolved on privacy grounds
alone after Kyllo. Id. In Kyllo, the Court held that police conducted a search when
they directed a thermal sensor to detect heat emanating from the defendant’s home,
even though they committed no trespass. Kyllo, 533 U.S. at 40. To Justice Kagan,
that firm and bright rule governed Jardines. The dog in Jardines, like the sensor in
Kyllo, was “ ‘a device that is not in general public use’ ” employed “ ‘to explore
details of the home that would previously have been unknowable without physical
intrusion.’ ” Jardines, 569 U.S. at 14 (Kagan, J., concurring, joined by Ginsburg
and Sotomayor, JJ.) (quoting Kyllo, 533 U.S. at 40). Both the sensor and the dog
effected searches for which a warrant was required. Id. at 14-15.

¶ 36 Justice Kagan’s concurrence was the primary support for the Seventh Circuit’s
decision in Whitaker, upon which the appellate court majority below heavily relied.
In Whitaker, the police received information from a confidential informant that a
person was dealing drugs at an apartment. Whitaker, 820 F.3d at 851. The property
manager of the apartment building signed a consent form authorizing police to
conduct a dog sniff of the building. A police officer and his dog proceeded to the
building, where the dog alerted to the presence of drugs at the door to the
defendant’s apartment. A subsequent search of the apartment pursuant to a warrant
revealed marijuana, cocaine, and heroin. Id. The defendant was charged with
possession with intent to deliver. Id. The defendant filed a motion to suppress,
which the trial court denied. He was convicted and sentenced. Id. at 851-52. He
appealed, insisting that the warrantless dog sniff violated the fourth amendment
under Jardines and Kyllo. Id. at 852.

¶ 37 The federal court of appeals reversed and remanded. Id. at 855. The appeals
court analyzed the case under the privacy rubric, holding that “[t]he use of a drug-
sniffing dog *** clearly invaded reasonable privacy expectations, as explained in
Justice Kagan’s concurring opinion in Jardines.” Id. at 852. A dog sniff in an

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 apartment hallway comes within the rule in Kyllo because a dog is a “sophisticated
sensing device not available to the general public” and because it detected
something—the presence of drugs—that would have been unknowable without
entering the apartment. Id. at 853. 4 Although the defendant did not have “a
reasonable expectation of complete privacy in his apartment hallway,” that did not
mean he had “no reasonable expectation of privacy against persons in the hallway
snooping into his apartment using sensitive devices not available to the general
public.” Id. The appeals court added that the defendant did not have the right to
exclude other people from the hallway, but he did have the right to expect certain
norms of behavior there: “Yes, other residents and their guests (and even their dogs)
can pass through the hallway. They are not entitled, though, to set up chairs and
have a party in the hallway right outside the door.” Id.

¶ 38 The defendant contends that Kyllo and Whitaker dictate the result here.
According to the defendant, those cases intimate that he had a reasonable
expectation of privacy inside his motel room, so that the warrantless dog sniff was
a search in violation of the fourth amendment. Certainly, the defendant is correct in
asserting that hotel or motel guests have a reasonable expectation of privacy inside
their rooms. See Stoner v. California, 376 U.S. 483, 490 (1964) (“[n]o less than a
tenant of a house, or the occupant of a room in a boarding house [citation], a guest
in a hotel room is entitled to constitutional protection against unreasonable searches
and seizures”); Hoffa v. United States, 385 U.S. 293, 301 (1966) (“[a] hotel room
can clearly be the object of Fourth Amendment protection as much as a home or an
office”); accord People v. Bankhead, 27 Ill. 2d 18, 23 (1963). But see United States
v. Agapito, 620 F.2d 324, 331 (2d Cir. 1980) (“the reasonable privacy expectations
in a hotel room differ from those in a residence”).

¶ 39 The only expectation of privacy that matters, however, is the expectation related
to the place searched. Contrary to the appellate court majority’s suggestion below,

4
Notably, the appeals court distinguished United States v. Place, 462 U.S. 696 (1983), where
the Supreme Court upheld a dog sniff of luggage at an airport, and Illinois v. Caballes, 543 U.S. 405
(2005), where the Court upheld a dog sniff of a vehicle during a traffic stop, because “[n]either case
implicated the Fourth Amendment’s core concern of protecting the privacy of the home.” Whitaker,
820 F.3d at 853. The Jardines Court similarly limited Place and Caballes to their factual settings
by stating that those cases held “canine inspection of luggage in an airport” and “canine inspection
of an automobile during a lawful traffic stop” did not violate the defendants’ reasonable expectation
of privacy under Katz. Jardines, 569 U.S. at 10.

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 Rio’s free air sniff did not detect the odor of narcotics inside Room 130 (see 2018
IL App (3d) 150877, ¶ 24) but rather outside. That is, Rio did not teleport through
the door and smell the air in the room; Rio smelled the air in the alcove. See Sanders
v. Commonwealth, 772 S.E.2d 15, 25 (Va. Ct. App. 2015) (“a dog does not detect
anything inside a [motel room], but merely detects the particulate odors that have
escaped from a [motel room],” so “the odors are no longer private, but instead are
intermingled with the public airspace” (internal quotation marks omitted)); cf.
United States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir. 1990) (“we find
that when the odor of narcotics escapes from the interior of a vehicle, society does
not recognize a reasonable privacy interest in the public airspace containing the
incriminating odor”); see generally, Illinois v. Caballes, 543 U.S. 405, 409 (2005)
(“the dog sniff was performed on the exterior of respondent’s car”); United States
v. Place, 462 U.S. 696, 707 (1983) (remarking that the dog sniff was performed on
“respondent’s luggage, which was located in a public place,” and not its contents).
The question becomes whether the defendant had an expectation of privacy there.

¶ 40 In determining whether a person has a reasonable expectation of privacy in a
place searched, we consider the person’s ownership or possessory interest in the
place, the person’s prior use of the place, the person’s exclusive control of the place
or ability to exclude others from it, and the person’s subjective expectation of
privacy in the place. Johnson, 237 Ill. 2d at 90 (citing People v. Sutherland, 223 Ill.
2d 187, 230 (2006)). That determination is fact-specific. See People v. Gill, 2018
IL App (3d) 150594, ¶ 96 (“[t]he question of whether a defendant has a reasonable
expectation of privacy depends on the totality of the circumstances,” which “will
vary from person to person and case to case”).

¶ 41 Here, the defendant had no reasonable expectation of privacy in the alcove
outside his room. He did not own the alcove. See Esser v. McIntyre, 267 Ill. App.
3d 611, 618 (1994) (“the hotel, not the guest, is the possessor of the real property
to which the guest and his guests have access”); Sanders, 772 S.E.2d at 24 (stating
that the defendant had a possessory interest in a motel room, “but as to the
walkways, his interest, like that of the other motel guests, was one of common, not
exclusive, use and access”). Consequently, he could not control who entered the
alcove or exclude people from it. The defendant was staying in Room 130, so he
presumably used the alcove for ingress and egress, but there is no evidence that he
used it in any other way.

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¶ 42 Finally, there is no evidence that he had a subjective expectation of privacy in
the alcove. A guest’s expectation of privacy inside a motel room diminishes quickly
outside it. See People v. Eichelberger, 91 Ill. 2d 359, 366 (1982) (“[I]n contrast to
the occupant of a private dwelling who has the exclusive enjoyment of the land he
possesses immediately surrounding his home, the hotel occupant’s reasonable
expectations of privacy are reduced with regard to the area immediately adjoining
his room.”); see also Roby, 122 F.3d at 1125 (holding that a hotel guest had an
expectation of privacy in his room but that the expectation did not extend to the
corridor outside his room); United States v. Dockery, 738 F. App’x 762, 764 (3d
Cir. 2018) (holding that the defendant did not have a “reasonable expectation of
privacy in [the] common area of the motel, which was open to guests and the public
alike”); United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir. 1979) (stating that
a motel guest’s fourth amendment rights do not evaporate, but “the extent of the
privacy he is entitled to reasonably expect may very well diminish” because “a
transient occupant of a motel must share corridors, sidewalks, yards, and trees with
the other occupants”); United States v. Marlar, 828 F. Supp. 415, 419 (N.D. Miss.
1993) (holding that a dog sniff of an exterior motel room door did not intrude upon
the defendant’s reasonable expectation of privacy); Sanders, 772 S.E.2d at 24
(holding that the defendant had a reasonable expectation of privacy inside his room
but “no expectation of privacy in the sights, sounds, and smells detectible without
unconstitutional intrusion from outside” the room). The defendant undoubtedly
wanted his illegal activity to remain private. “The test of legitimacy is not whether
the individual chooses to conceal assertedly ‘private’ activity” but “whether the
government’s intrusion infringes upon the personal and societal values protected
by the Fourth Amendment.” Oliver, 466 U.S. at 182-83. When the defendant’s
expectation was but a sliver of hope that the odor of narcotics would not be sensed
by a drug-detection dog in the alcove outside his motel room, that expectation is
not reasonable and not subject to fourth amendment protection.

¶ 43 CONCLUSION

¶ 44 For the reasons that we have stated, the judgment of the appellate court is
reversed, and the judgment of the circuit court is affirmed.

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¶ 45 Appellate court judgment reversed.

¶ 46 Circuit court judgment affirmed.

¶ 47 CHIEF JUSTICE ANNE M. BURKE, dissenting:

¶ 48 The majority holds that a police officer’s use of a trained drug-detection dog to
sniff at the door of defendant’s motel room did not constitute a search of the room
within the meaning of the fourth amendment. Supra ¶ 39. Instead, it holds that the
dog sniff was merely a search of the alcove outside the room. Supra ¶¶ 40-42. This
holding cannot be reconciled with the clear precedent of the United States Supreme
Court. I therefore respectfully dissent.

¶ 49 ANALYSIS

¶ 50 Police in Rock Island, Illinois, used a trained drug-detection dog to conduct a
sniff at defendant’s motel room door. The dog alerted to the presence of drugs
inside the room, and based on that alert, police obtained a search warrant. Heroin
was discovered inside the motel room, and defendant was thereafter convicted of
unlawful possession with intent to deliver a controlled substance. Before this court,
defendant contends that the dog sniff was an unreasonable search of his motel room
in violation of the fourth amendment.

¶ 51 The fourth amendment, which applies to the states through incorporation by the
fourteenth amendment, protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const., amend. IV. A search occurs within the meaning of the fourth
amendment “when an expectation of privacy that society is prepared to consider
reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984).
Determining whether a reasonable expectation of privacy exists is a two-part
inquiry. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
First, the person must have exhibited a subjective expectation of privacy in the
place searched. Second, the expectation must be one that society is prepared to
recognize as reasonable. Id.

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¶ 52 In this case, the majority concedes that defendant had a reasonable expectation
of privacy inside his motel room. Supra ¶ 38. However, the majority concludes this
fact is of no moment. The majority explains that the only expectation of privacy
that matters “is the expectation related to the place searched.” Supra ¶ 39. The
majority then states that the dog in this case “did not teleport through the door and
smell the air in the room; [it] smelled the air in the alcove.” Supra ¶ 39. From this,
the majority concludes that the police did not conduct a search of the interior of
defendant’s motel room at all but, instead, searched only the alcove outside the
room. Supra ¶ 39. I disagree. The majority holds that the dog sniff would only have
been a search of defendant’s motel room if the dog had been on the other side of
the door. In other words, according to the majority, a search does not occur under
the fourth amendment unless a government agent or monitoring device gathering
information physically intrudes into a space in which a person has a reasonable
expectation of privacy. This reasoning is directly contrary to United States Supreme
Court precedent.

¶ 53 The Supreme Court has repeatedly held that a government agent’s use of a
monitoring device to obtain information about the interior of an enclosed space in
which a person has a reasonable expectation of privacy constitutes a search under
the fourth amendment—even if the monitoring device collecting the information is
itself located outside the enclosed space. The Court has applied this rule to (1) an
eavesdropping device attached to the outside of a public telephone booth (Katz, 389
U.S. at 353), (2) a tracking device collecting information from a “beeper” attached
to a can of chemicals inside a house (United States v. Karo, 468 U.S. 705, 714-16
(1984)), (3) a thermal imaging device used to measure the amount of heat
emanating from a house (Kyllo v. United States, 533 U.S. 27, 34-35 (2001)), and,
of particular relevance here, (4) a drug-detection dog sniff on the front porch of a
house (Florida v. Jardines, 569 U.S. 1 (2013)).

¶ 54 Underlying each of these decisions is the fundamental principle that “the Fourth
Amendment protects people, not places.” Katz, 389 U.S. at 351. That is, the fourth
amendment protects a person’s right to a reasonable expectation of privacy, not just
the right to be free from unreasonable physical intrusion. Thus, the collection of
information by the government can amount to a search under the fourth amendment
even where the government does not physically intrude into the place being
searched. Id. at 353.

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¶ 55 For instance, in Karo, government agents used a tracking device to monitor a
beeper signal emanating from a house from a separate location. Karo, 468 U.S. at
714. Neither the agents nor the tracking device ever crossed the threshold of the
curtilage surrounding the home. Nevertheless, the Supreme Court held that the
monitoring of the beeper was a violation of the defendant’s reasonable expectation
of privacy and, thus, constituted a search of the house, because it “reveal[ed] a
critical fact about the interior of the premises that the Government [wa]s extremely
interested in knowing and that it could not have otherwise obtained without a
warrant.” Id. at 715.

¶ 56 Similarly, in Kyllo, a thermal imaging device was placed inside a vehicle parked
across the street from the home that the government agents were monitoring. Kyllo,
533 U.S. at 30. The government argued that the thermal imaging was permissible
under the fourth amendment because it detected only heat radiating from the
external surface of the house. Id. at 35. The Court rejected this argument, finding
that the thermal imager infringed upon a reasonable expectation of privacy by
detecting information about the inside of the home that could not otherwise have
been obtained without entering inside. Id. at 40. The Court explained:

“just as a thermal imager captures only heat emanating from a house, so also a
powerful directional microphone picks up only sound emanating from a
house—and a satellite capable of scanning from many miles away would pick
up only visible light emanating from a house. We rejected such a mechanical
interpretation of the Fourth Amendment in Katz, where the eavesdropping
device picked up only sound waves that reached the exterior of the phone booth.
Reversing that approach would leave the homeowner at the mercy of advancing
technology—including imaging technology that could discern all human
activity in the home. While the technology used in the present case was
relatively crude, the rule we adopt must take account of more sophisticated
systems that are already in use or in development.” Id. at 35-36.

¶ 57 The Supreme Court has also applied these principles to dog sniffs. In Jardines,
police used a drug-detection dog to conduct a sniff on the front porch of the house
in which the defendant resided. Jardines, 569 U.S. at 4. Although the majority

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 opinion and the concurrence in that case relied on different rationales, 5 the five
justices in the majority agreed that the dog sniff gathered information about the
inside of the house, not information about the porch on which the dog sniff took
place. Id. at 3, 5 (finding the officers used the dog sniff to investigate the contents
of the home); id. at 12 (Kagan, J., concurring, joined by Ginsburg and Sotomayor,
JJ.) (concluding that the purpose of the dog sniff was to detect things inside the
home that the officers could not perceive unassisted). Indeed, no justice held, or
even suggested, that the dog sniff was not a search of the house’s interior because
the dog had only smelled the air on the porch. See also, e.g., Florida v. Harris, 568
U.S. 237, 248 (2013) (the sole purpose of a dog sniff is to gather information about
the contents of a private enclosed space); United States v. Whitaker, 820 F.3d 849,
853 (7th Cir. 2016) (same); United States v. Thomas, 757 F.2d 1359, 1366-67 (2d
Cir. 1985) (same).

¶ 58 To be sure, the government’s gathering of information about the interior of an
enclosed space may not amount to a search if that information is in plain view or
“plain smell.” However, a drug-detection dog is only necessary in those situations
where nothing is in “plain smell.” A trained police dog is as much a sophisticated
monitoring “device” as was the eavesdropping device in Katz, the tracking device
in Karo, or the thermal imager in Kyllo. As Justice Kagan explained in Jardines,
“drug-detection dogs are highly trained tools of law enforcement, geared to respond
in distinctive ways to specific scents so as to convey clear and reliable information
to their human partners. [Citation.] They are to the poodle down the street as high-
powered binoculars are to a piece of plain glass.” Jardines, 569 U.S. at 12-13
(Kagan, J., concurring, joined by Ginsburg and Sotomayor, JJ.). Just as the police
are not entitled to stand on a person’s front porch and peer inside the window with
high-powered binoculars, they also are not entitled to bring a drug-sniffing dog to
a house in order to detect objects “not in plain view (or plain smell).” Id. at 13.

5
The majority opinion in Jardines, authored by Justice Scalia, held that the dog sniff constituted
a search because the police officers physically entered and occupied the house’s curtilage, which
enjoys protection as part of the home itself, in order to engage in conduct not explicitly or implicitly
permitted by the defendant. Jardines, 569 U.S. at 5-6. The concurring justices joined in this
reasoning but argued that the dog sniff was a search for the additional reason that it violated the
defendant’s reasonable expectation of privacy in the home. Id. at 12 (Kagan, J., concurring, joined
by Ginsburg and Sotomayor, JJ.).

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¶ 59 The United States Court of Appeals for the Seventh Circuit applied the
foregoing decisions to a dog sniff at the door of an apartment in Whitaker, 820 F.3d
at 853. In that case, the Seventh Circuit stated “[t]here is little doubt that a highly
trained drug-detecting dog is a ‘super-sensitive instrument’ under Kyllo.” Id. at 853
n.1 (citing Jardines, 569 U.S. at 13 (Kagan, J., concurring, joined by Ginsburg and
Sotomayor, JJ.)). The court then held that the dog sniff violated the defendant’s
reasonable expectation of privacy “against persons in the hallway snooping into his
apartment using sensitive devices not available to the general public.” (Emphasis
added.) Id. at 853. For the same reason that a police officer may not put a
stethoscope to an apartment door and listen to the conversation inside, the court
reasoned, an officer is not entitled to “park a sophisticated drug-sniffing dog outside
an apartment door, at least without a warrant.” Id. at 853-54.

¶ 60 Supreme Court precedent leaves no question that a government agent’s use of
a sophisticated monitoring device to obtain information about the interior of an
enclosed space in which a person has a reasonable expectation of privacy
constitutes a search under the fourth amendment. And this remains true even if the
monitoring device collecting the information is itself located outside the enclosed
space. In this case, it is clear the dog sniff collected information about the interior
of defendant’s motel room, an area in which defendant had a reasonable expectation
of privacy. Deputy Jason Pena testified that he and his K-9 partner were asked to
perform a “free air sniff” of room 130 of the motel. He testified that the dog alerted
to the odor of narcotics at the door to room 130 by lying down in front of the door.
According to Deputy Pena’s testimony, the dog was positioned “at the door handle
and the door seam” when he alerted. He testified that the dog “got within inches of
the door” to room 130.

¶ 61 Following the positive alert, the police department applied for a search warrant
in the circuit court. The complaint for search warrant alleged that police had
probable and reasonable grounds to believe that defendant was in possession of
controlled substances and/or other illicit items at his

“residence on the premises located at 4300-11th St. room #130 Rock Island,
Rock Island County, Illinois being a tan with blue trim, single story, multi-unit
hotel complex with room #130 being a single unit of the multi-unit complex

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 known as American Motor Inn with the numbers ‘130’ affixed to the west side
of the south-facing door.”

An affidavit attached to the complaint alleged, in part, that “Rock Island County
Deputy Pena and his K-9 partner conducted a free air sniff of 4300-11th St. room
#130 with a positive alert.” According to the affidavit, defendant subsequently
admitted to police that he was currently staying in room 130 at the American Motor
Inn. The court signed the search warrant. Police then searched the interior of room
130, where they found a quantity of what was later determined to be heroin, along
with United States currency and alleged drug paraphernalia. Based on the discovery
of these items, defendant was charged with unlawful possession with intent to
deliver a controlled substance and was later convicted of that charge at a bench trial.

¶ 62 The police in this case used a monitoring “device” not in general public use, a
trained police drug-detection dog, to obtain information that defendant was
possessing illegal drugs inside his motel room. The purpose of the dog sniff was to
provide information about what was inside the room, not what was in the alcove.
We know this because the police were directed to obtain a free air sniff of Room
130, not the alcove outside Room 130. Moreover, the police used the evidence of
the dog’s positive response to establish probable cause for a warrant to search the
inside of the motel room. They did not seek a search warrant for the alcove but for
the room. If the dog was merely detecting odors in the alcove, as the majority
concludes, then it was not possible that the canine alert established sufficient
evidence to secure a warrant to search the room. The majority fails to explain this
discrepancy. Without question, the dog sniff collected information about the
interior of defendant’s motel room, a space in which the majority concedes
defendant had a reasonable expectation of privacy. The dog sniff was therefore a
search of the room.

¶ 63 The majority makes no attempt to explain why the Supreme Court’s decisions
in Katz, Karo, Kyllo, and Jardines have no application here. Nor does the majority
make any attempt to explain why the Seventh Circuit’s decision in Whitaker is
unpersuasive. Instead, the majority relies almost entirely on an opinion by the
intermediate Virginia Court of Appeals, Sanders v. Commonwealth, 772 S.E.2d 15
(Va. Ct. App. 2015). Supra ¶ 39. Like the majority here, the court in that case held
that a dog sniff at a motel room door did not detect anything inside the room but

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 merely detected the odor particles that escaped from the room and that, thus, no
search occurred. Sanders, 772 S.E.2d at 25. This analysis is deeply flawed.

¶ 64 Just as the uses of the eavesdropping device in Katz, the tracking device in
Karo, the thermal imager in Kyllo, and the dog sniff in Jardines all constituted
searches under the fourth amendment because they gathered formation from an area
in which a person had a reasonable expectation of privacy, so too did the
warrantless dog sniff in this case. The conclusion by Sanders and the majority, that
a dog sniff at a motel room door gathers no information about the room’s interior
and therefore is not a search of the room itself, is simply wrong.

¶ 65 In support of its conclusion that the dog sniff was not a search of defendant’s
motel room, the majority also cites cases addressing the dog sniff of a vehicle
during a lawful traffic stop or a sniff of luggage at an airport. Supra ¶ 39 (citing
Illinois v. Caballes, 543 U.S. 405 (2005), United States v. Place, 462 U.S. 696
(1983), and United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990)).
However, the majority mischaracterizes these cases as finding that the dog sniffs
gathered information only about the exterior of the vehicle or luggage. This is
incorrect. The entire point of the dog sniff is to gather information about the interior
of an enclosed space. See Caballes, 543 U.S. at 410 (holding the dog sniff was
conducted to detect and locate contraband inside the car); Place, 462 U.S. at 707
(holding the dog sniff revealed information about the luggage’s contents, i.e.,
whether contraband was present inside the luggage).

¶ 66 I would find that the free-air dog sniff in this case constituted a warrantless
search of the motel room in violation of defendant’s fourth amendment rights.
Without the evidence of the positive dog sniff alert, there was insufficient evidence
in the complaint and affidavit for a search warrant to support a finding of probable
cause. The exclusionary rule prohibits the introduction into evidence of the
products of unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643, 655
(1961). Therefore, the evidence resulting from the search of defendant’s motel
room should have been suppressed as fruit of the poisonous tree. See People v.
Henderson, 2013 IL 114040, ¶ 33.

¶ 67 Finally, I express no opinion on that part of the majority opinion holding that
no search occurred under the property-based approach. Supra ¶¶ 19-31. This

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 analysis is unnecessary to determine that a fourth amendment search occurred in
this case.

¶ 68 For the foregoing reasons, I respectfully dissent.

¶ 69 JUSTICE NEVILLE joins in this dissent.

¶ 70 JUSTICE MICHAEL J. BURKE took no part in the consideration or decision
of this case.

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